{ "id": 796099, "name": "STATE OF NORTH CAROLINA v. TERENCE COREY AIKENS", "name_abbreviation": "State v. Aikens", "decision_date": "1996-02-09", "docket_number": "No. 150A95", "first_page": "567", "last_page": "580", "citations": [ { "type": "official", "cite": "342 N.C. 567" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "73 ALR3d 98", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "89 ALR2d 1140", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "328 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "253" }, { "page": "272" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "313 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723320 ], "year": 1985, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0266-01" ] }, { "cite": "338 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "85" }, { "page": "86" } ], "opinion_index": 0 }, { "cite": "315 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717875 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0310-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "412 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "40-41", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "330 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511838 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0446-01" ] }, { "cite": "112 L. Ed. 2d 155", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "498 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6430082, 6430886, 6431174, 6431528, 6430379, 6431086, 6430160, 6431409, 6431282, 6430613, 6430750, 6430970, 6431708, 6430270 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0871-01", "/us/498/0871-07", "/us/498/0871-10", "/us/498/0871-13", "/us/498/0871-04", "/us/498/0871-09", "/us/498/0871-02", "/us/498/0871-12", "/us/498/0871-11", "/us/498/0871-05", "/us/498/0871-06", "/us/498/0871-08", "/us/498/0871-14", "/us/498/0871-03" ] }, { "cite": "390 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "326 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309751 ], "year": 1990, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0368-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "101 S.E. 629", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "178 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274404 ], "year": 1919, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc/178/0784-01" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "257 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "425" }, { "page": "425", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568643 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0135-01" ] }, { "cite": "446 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "12", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552831 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0224-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "61", "parenthetical": "citations omitted" }, { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "236", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] } ], "analysis": { "cardinality": 1188, "char_count": 31076, "ocr_confidence": 0.739, "pagerank": { "raw": 1.2945680476533066e-07, "percentile": 0.6207263435049688 }, "sha256": "3c98de55cbc18fa22b987ade1f3889b1ac6394bd93017e0f4006194e6caac66c", "simhash": "1:886bb304d538d752", "word_count": 5236 }, "last_updated": "2023-07-14T19:36:26.105751+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. TERENCE COREY AIKENS" ], "opinions": [ { "text": "PARKER, Justice.\nA juvenile petition alleging that defendant committed one count of first-degree murder was filed in the Juvenile Court in Forsyth County on 1 October 1993. By order of the Juvenile Court, defendant was bound over to Superior Court for trial as an adult pursuant to N.C.G.S. \u00a7 7A-608. On 14 February 1994 defendant was indicted for the first-degree murder of Robert Lee McCravy. Defendant was tried noncapitally. The jury found defendant guilty of first-degree murder on the basis of lying in wait, and Judge Freeman sentenced defendant to life imprisonment.\nThe State\u2019s evidence tended to show that Robert and Sharon McCravy were married in 1991 and lived in Winston-Salem, North Carolina. In 1993 Sharon\u2019s teenage daughter, Sherika Caines, came to live with them. Defendant thereafter became Sherika\u2019s boyfriend.\nOn 14 September 1993 Mark Winfrey of the Pardue Insurance Agency met with Robert and Sharon McCravy at their home to discuss life insurance. While there Winfrey saw a young female talking on the telephone and later saw her \u201ckind of standing around the corner kind of in an eavesdropping type of situation on the other side of the kitchen.\u201d On 14 September 1993 Winfrey wrote a $100,000 life insurance policy on both Robert and Sharon McCravy.\nOn 28 September 1993 Damian Shaw, Frederick Carlson, and Albert Walker gave Sherika a ride home. During the drive Sherika stated they were going to be \u201crunning into some money, a lot of money real soon.\u201d Later Shaw, Carlson, and Walker went to defendant\u2019s house to eat pizza. Defendant told the group that he was going to kill Sherika\u2019s parents. Defendant showed the group the gun he was planning to use for the murders. Sometime on 29 September 1993, defendant gave the gun to Sherika. In the early morning of 30 September 1993, defendant again told Shaw that he was serious about killing Sherika\u2019s parents.\nBetween 6:00 and 6:30 a.m. on 30 September 1993, defendant called Sherika and talked with her for ten to fifteen minutes. Defendant then told Shaw that they were going to pick up Sherika. Defendant and Shaw told Carlson where they were going, and he joined them. At approximately 7:00 a.m. defendant, Shaw, and Carlson arrived at Sherika\u2019s house in Shaw\u2019s blue 1987 Celebrity. Defendant told Shaw and Carlson to stay in the car while he went into the house to get Sherika. Shaw saw Sherika open the front door when defendant knocked.\nDefendant entered the house, got the gun from Sherika, and went to Sherika\u2019s bedroom. Defendant waited in the bedroom while Sherika awakened Robert McCravy (victim) and told him there was something wrong with the washing machine. When the victim went into the laundry room, defendant went in behind him and fired one shot without looking. Defendant then ran into another room and observed the victim through a crack in the door. Defendant observed the victim coming down the hall toward the kitchen, holding his head and yelling for someone to call the police. Defendant came out of the room and confronted the victim in the kitchen. Defendant said, \u201cYou know it\u2019s over now, motherf-.\u201d Defendant saw the victim reach for something behind him. Defendant told the victim to get on the floor, and then he shot the victim two more times.\nBobby L. Johnson, a school bus driver with the Winston-Salem/Forsyth County Schools, pulled up to the McCravy house shortly after 7:00 a.m. on 30 September 1993. Johnson waited thirty to forty-five seconds for Sherika. While Johnson was waiting he noticed a dark, older, dirty car sitting in the driveway. Johnson could not see in the front seat of the car, but he saw two males sitting in the backseat. When Sherika did not appear, Johnson proceeded on his route.\nAt 7:18 a.m. Kelly Howell of the Forsyth County Sheriffs Department got a call from Emergency Medical Services (EMS). EMS reported a 911 hang-up call from the McCravy residence. Howell called the residence, and a young female answered the phone. Howell testified that the female was polite but somewhat nervous and said that she accidentally hit the speed dial and everything was fine.\nWhile parked in the driveway at the McCravy residence, Shaw saw the screen come out of one of the front windows of the house and then saw Sherika climb out the window and run to the car. Sherika got in the backseat with Carlson and said, \u201cHe just shot him. He just shot him. Fred, go in the house.\u201d Carlson went toward the front door, with Shaw and Sherika following. As they entered the house, they saw defendant standing in the hallway with a gun in his hand and blood on the floor toward the kitchen and on the door frame. Defendant was yelling, \u201cF\u2014 him, f \u2014 - him. F\u2014 that mother-f-.\u201d Shaw and Carlson walked to the kitchen and saw the victim lying on the kitchen floor. Defendant yelled, \u201cMake sure this motherf--is dead!\u201d Defendant then walked over and kicked the victim.\nSherika removed several telephones from the house, and the group left. Shaw got into his own car; and defendant, Carlson, and Sherika got into the victim\u2019s Mercedes-Benz. The group went to Albert Walker\u2019s house, where defendant told Walker what had occurred. The group, including Walker, disposed of the telephones in a trash bin, returned the victim\u2019s automobile to his residence, threw the gun in a local lake, and threw the victim\u2019s wallet down the sewer.\nDuring the investigation of the murder, investigators discovered the 911 call; as a result of this information, Sherika gave a statement. Officers then arrested Shaw, who also gave a statement. Detective Gary Thomas arrested defendant and transported him to the Hall of Justice. Detective Thomas advised defendant of his Miranda rights and advised him not to make a statement. Upon arrival at the Hall of Justice, Detective Alex Niforos advised defendant of his juvenile rights. Defendant initialed each of his rights; affirmed that he understood them; stated that he did not want a parent, guardian, custodian, or lawyer present; and stated that he wanted to answer questions. At 5:15 p.m. on 30 September 1993, defendant agreed to make a statement. Defendant wrote, \u201cI am not guilty of murder.\u201d Niforos told defendant that he knew he was lying because Sherika had told the truth. Upon his request, defendant was permitted to speak with Sherika. At 6:25 p.m. defendant made another statement, in which he confessed.\nFrederick Carlson was arrested later and also made a statement. Carlson and Shaw were charged with first-degree murder and pled guilty to accessory after the fact of murder and felony larceny of an automobile.\nDr. Donald Jason, an expert in forensic pathology, performed an autopsy on the victim on 1 October 1993 and testified that the victim had three bullet wounds. The first bullet wound, which went from the left upper part of the victim\u2019s head to the right upper part of the head, was inflicted while the victim was leaning over the washer in the laundry room. The second bullet wound, above the victim\u2019s left eyebrow, was inflicted while the victim was in the kitchen, either while the victim was standing or kneeling. The last bullet wound, in the back right part of the head, was inflicted while the victim lay on the floor. Dr. Jason testified that the victim died as a result of the bullet wound over the left eyebrow.\nDefendant testified on his own behalf and also presented the testimony of two expert witnesses. David Abemethy, an expert in substance abuse, testified that defendant was alcohol- and cannabis-dependent. Claudia Coleman, an expert in psychology and substance abuse, testified that results from defendant\u2019s psychological tests looked \u201cvery much like the profile of a young substance abuser or a young addict.\u201d\nDefendant\u2019s account of the murder was substantially similar to that presented by the State. Defendant admitted that he killed the victim but claimed that he did not know what he was doing at the time of the murder because he was under the influence of alcohol. Defendant also testified that after he fired the first shot into the laundry room, he ran into another room and debated whether to pursue the victim into the kitchen or whether to leave. He testified that when he went into the kitchen, he \u201cstarted talking to [the victim] about why [the victim] didn\u2019t like [him].\u201d Defendant also testified that the victim said something to him before the fatal shots, although he cannot remember what he said. Defendant denied kicking or yelling at the victim. Defendant testified that he felt sorry for the victim and himself and that he \u201cwouldn\u2019t want to be hunt [sic] down like that,\u201d \u201c[l]ike the way I did him.\u201d\nIn defendant\u2019s first assignments of error, he contends there was insufficient evidence to convict him of first-degree murder on the theory of lying in wait and, therefore, that this theory should not have been submitted to the jury. Specifically, defendant argues that the element of surprise is lacking in this case. Defendant contends that the initial shot in the laundry room that alerted the victim, the time lapse between the first shot and the fatal attack, and defendant\u2019s confrontation and conversation with the victim prior to the killing negated the element of surprise. Thus, defendant contends there was insufficient evidence to support a conviction based on the theory of lying in wait. We do not agree.\nWe have previously set forth the standard for determining a motion to dismiss as follows:\nWhen a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Whether evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The term \u201csubstantial evidence\u201d simply means \u201cthat the evidence must be existing and real, not just seeming or imaginary.\u201d State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).\nState v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (citations omitted). In passing upon a defendant\u2019s motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference. Id. at 237, 400 S.E.2d at 61.\nViewed in the light most favorable to the State, the evidence in the instant case was sufficient to support the submission of murder by lying in wait to the jury. In State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994), we stated that a defendant commits homicide by lying in wait when he \u201clies in wait for the victim, that is, waits and watches for the victim in ambush for a private attack on him, [and] intentionally assaults the victim, proximately causing the victim\u2019s death.\u201d Id. at 231, 446 S.E.2d at 12 (citations omitted). In State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979), we described \u201clying in wait\u201d as follows:\n[W]hen G.S. 14-17 speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait.\nId. at 147-48, 257 S.E.2d at 425.\nIn the instant case defendant went to the victim\u2019s home while he was sleeping, armed himself with a loaded gun, and hid in Sherika\u2019s bedroom. Defendant remained out of sight while Sherika awakened the victim and told him there was something wrong with the washing machine. Defendant watched for the victim to come out of his bedroom and then followed him as he walked to the laundry room. Defendant shot the victim one time and then ran into another room. Defendant watched through a crack while the victim walked into the kitchen. Defendant remained hidden until he walked in the kitchen and said, \u201cYou know it\u2019s over now, motherf-Defendant saw the victim reach for something behind him and ordered the victim to get on the floor. Defendant then shot the victim two more times. Clearly these facts describe \u201ca killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim,\u201d as well as \u201c[a]n assailant who watches and waits in ambush for his victim.\u201d Id.\nDefendant attempts to distinguish this case from previous lying in wait cases based on the victim\u2019s awareness that he had been assaulted after the first shot and the interval of time between the first shot and the fatal shot, during which time defendant confronted the victim and they had a verbal exchange. Again we do not agree. As stated in Allison:\n[I]t is not necessary that [an assailant] be actually concealed in order to lie in wait. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin\u2019s presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. Certainly one who has lain in wait would not lose his status because he was not concealed at the time he shot his victim. The fact that he reveals himself or the victim discovers his presence will not prevent the murder from being perpetrated by lying in wait.\nId. at 148, 257 S.E.2d at 425 (citation omitted). In the instant case defendant revealed himself to the victim only after defendant had shot the victim one time and just prior to shooting the victim two more times. Although the victim was aware that he had been injured after the first shot, he did not know the identity, whereabouts, or intentions of his assailant. Prior to the fatal shots, the victim did not have time to arm himself or to complete a 911 emergency call. Furthermore, defendant testified that prior to entering the kitchen to confront the victim, he \u201cwaited around there for like a minute\u201d and wondered whether he should , go in the kitchen or leave. \u201cEven a moment\u2019s deliberate pause before killing one unaware of the impending assault and consequently \u2018without opportunity to defend himself\u2019 satisfies the definition of murder perpetrated by lying in wait.\u201d State v. Brown, 320 N.C. 179, 190, 358 S.E.2d 1, 10 (quoting State v. Wiseman, 178 N.C. 784, 790, 101 S.E. 629, 631 (1919)), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nWe hold that there was sufficient evidence tending to prove each element of first-degree murder by lying in wait and that it was not error to submit this theory of first-degree murder to the jury. These assignments of error are overruled.\nIn defendant\u2019s next assignment of error, he contends that the trial court erred by denying his request for an instruction on voluntary intoxication. Defendant argues that murder perpetrated by lying in wait is a specific-intent offense to which the defense of voluntary intoxication is applicable. This assignment of error is without merit.\nWe have previously held that \u201c[premeditation and deliberation are not elements of the crime of first-degree murder perpetrated by means of lying in wait, nor is a specific intent to kill. The presence or absence of these elements is irrelevant.\u201d State v. Leroux, 326 N.C. 368, 375, 390 S.E.2d 314, 320, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990). Defendant argues that while the specific intent to kill is not an element of murder by lying in wait, the crime still involves a specific intent, namely, the intent to \u201cwait.\u201d Defendant acknowledges that we previously rejected this argument in State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992); however, defendant requests that Baldwin be reexamined.\nIn Baldwin we stated:\n[L]ying in wait is a physical act. Like poison, imprisonment, starving, and torture \u2014 the other physical acts specified in N.C.G.S. \u00a7 14-17 \u2014 lying in wait is a method employed to kill. It does not require a finding of any specific intent. Because voluntary intoxication may only be considered as a defense to specific intent crimes, it is therefore irrelevant to a charge of first-degree murder by lying in wait, a crime that does not require a finding of specific intent.\nId, at 461-62, 412 S.E.2d at 40-41 (citations omitted). Defendant offers no argument meriting reconsideration of our position on this issue. Thus, this assignment of error is overruled.\nBy a further assignment of error, defendant contends that the trial court improperly denied his motion to suppress his confession. Defendant contends that his confession should have been suppressed for two reasons: (i) defendant was not informed prior to waiving his rights that he could be tried as an adult, and (ii) defendant should have been rewarned of his juvenile rights prior to making his confession.\nDefendant did not assert these issues in his written motion to suppress filed prior to his trial. Similarly, defendant did not raise these issues during the voir dire of Detective Niforos. Defense counsel argued only that defendant, prior to his confession, had indicated that he did not wish to be questioned further and that the confession, therefore, should be suppressed. During the voir dire defendant also asked the court to determine whether defendant made a \u201cknowing, willing and understanding waiver of his rights\u201d pursuant to N.C.G.S. \u00a7 7A-595. The trial court made findings of fact and concluded that defendant \u201cvoluntarily, knowingly, willfully, understandingly and voluntarily waived his rights and gave the statement in question\u201d and that none of defendant\u2019s constitutional rights were violated.\nDefendant raises the two issues before this Court for the first time on appeal. Having failed to attack the admissibility of his confession on these grounds during the trial, defendant may not do so for the first time on appeal. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988). Moreover, assuming arguendo that defendant properly preserved this error for appeal, after a review of the record we find that the trial court\u2019s findings of fact are supported by competent evidence and the findings of fact support the trial court\u2019s conclusions of law. Therefore, this assignment of error is overruled.\nBy defendant\u2019s final assignment of error, he contends that the trial court improperly instructed the jury pursuant to N.C.G.S. \u00a7 15A-1235 when the jury foreperson reported that the jury was deadlocked. This assignment of error is also without merit.\nIn response to the foreperson\u2019s announcement that the jury was deadlocked eleven to one, the trial court gave the following supplemental instruction:\nWell, let me preface this by saying that I am certainly in no way trying to coerce you or force you to reach a decision, but let me tell you that it is your duty as jurors to discuss this case, deliberate on it and to keep an open mind and consider the opinions of all the other jurors and, if you can, to reach a unanimous decision if you can do that without the surrender of any conscientious or individual convictions. And that is your duty as a juror. However, no juror should give up his own personal convictions solely for the purpose of reaching a verdict.\nWe\u2019ve been in this case all week. It\u2019s a fairly long case and maybe two hours and a half is not quite enough deliberation time. So I\u2019m going to let you go back and see if you can reason it over as reasonable men and women and reach a unanimous decision, if you can, without surrendering any individual conscientious convictions. I\u2019m going to let you try just a little more deliberation, but I\u2019m certainly not trying to force you to reach a verdict. But if you\u2019ll just go back and talk about it and try to keep an open mind and be reasonable and give every consideration a full and open opportunity and consideration and try a little bit longer. And we\u2019ll send for you after a while or you can send a note back. So if you all will step back and resume your deliberations.\nDefendant did not object to the court\u2019s supplemental instruction, and twenty minutes later the jury returned with a verdict.\nDefendant contends that this supplemental instruction did not comply with the statutory requirements of N.C.G.S. \u00a7 15A-1235 and thereby coerced a jury verdict in violation of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 24 of the North Carolina Constitution.\nDefendant, relying on State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), contends that he was not required to object to these instructions at trial because failure to comply with a statutory mandate preserves the error for appellate review even absent an objection at trial. Defendant argues that this error is preserved, since \u201cthe trial court has a statutory duty under N.C.G.S. \u00a7 15A-1235 to instruct in accordance with the statute.\u201d\nDefendant\u2019s reliance on State v. Ashe to overcome his failure to object is misplaced. In Ashe the Court held that the statute at issue, N.C.G.S. \u00a7 15A-1233(a), mandated that the jury be returned to the courtroom and that the trial judge exercise discretion in determining whether to allow the jurors to review evidence previously presented. The trial court\u2019s failure to comply with this mandatory statute relieved defendant of his obligation to object in order to preserve the error for review. In the present case the statute at issue, N.C.G.S. \u00a7 15A-1235(c), is permissive rather than mandatory. State v. Williams, 315 N.C. 310, 326, 338 S.E.2d 75, 85 (1986). Hence, defendant having failed to object to the instruction, our review is to determine whether the error, if any, constituted plain error. Id. at 328, 338 S.E.2d at 86.\nSection 15A-1235 of the North Carolina General Statutes provides in pertinent part:\n(a) Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.\n(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:\n(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;\n(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;\n(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and\n(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\n(c) If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.\nN.C.G.S. \u00a7 15A-1235(a)-(c) (1988). Whenever the trial judge gives a deadlocked jury any of the instructions authorized by N.C.G.S. \u00a7 15A-1235(b), he must give all of them. Williams, 315 N.C. 310, 338 S.E.2d 75. Defendant contends that the trial court\u2019s instruction did not contain language tracking subsection 15A-1235(b)(2), which states, \u201cEach juror must decide the case for himself,\u201d and subsection 15A-1235(b)(4), which states, \u201cNo juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\u201d\nWe have previously held that \u201cevery variance from the procedures set forth in [N.C.G.S. \u00a7 15A-1235] does not require the granting of a new trial.\u201d State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985).\n[I]t has long been the rule in this State that in deciding whether a court\u2019s instructions force a verdict or merely serve as a catalyst for further deliberations, an appellate court must consider the circumstances under which the instructions were made and the probable impact of the instructions on the jury.\nId. We conclude the trial court\u2019s instructions addressed all of the concerns set out in N.C.G.S. \u00a7 15A-1235(b)(2) and (b)(4). The trial court advised the jury to \u201ckeep an open mind and consider the opinions of all the other jurors and, if you can, to reach a unanimous decision if you can do that without the surrender of any conscientious or individual convictions.\u201d The trial court further instructed the jury that \u201cno juror should give up his own personal convictions solely for the purpose of reaching a verdict\u201d and instructed the jury to try to reach a verdict \u201cwithout surrendering any individual conscientious convictions.\u201d Furthermore, the trial court twice assured the jurors that it was not trying to force them to reach a verdict. In Peek we stated:\n[Although the instructions do not precisely follow the guidelines set forth in N.C.G.S. \u00a7 15A-1235, the essence of the instructions was merely to ask the jury to continue to deliberate. The instructions in no way contained any element of coercion that would warrant a new trial in this matter. Indeed we note that the effect of the instructions was not so coercive as to impel defendant\u2019s trial counsel to object to the instructions.\nId. at 272, 328 S.E.2d at 253. Similarly, in the instant case, the trial court\u2019s instructions were in no way coercive. On the contrary, the trial court repeatedly emphasized to the jurors the importance of their individual convictions. We hold the trial court did not err in its reinstruction. Accordingly, plain error analysis is unnecessary. This assignment of error is overruled.\nHaving reviewed the trial transcript and defendant\u2019s assignments of error, we conclude that defendant received a fair trial free from prejudicial error.\nNO ERROR.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Gail E. Weis, Associate Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Janine M. Crawley, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERENCE COREY AIKENS\nNo. 150A95\n(Filed 9 February 1996)\n1. Homicide \u00a7 260 (NCI4th)\u2014 first-degree murder \u2014 lying in wait \u2014 sufficiency of evidence\nThe evidence was sufficient to support defendant\u2019s conviction of first-degree murder on the theory of lying in wait where it tended to show that defendant went to the victim\u2019s home while he was sleeping, armed himself with a loaded gun, and hid in his girlfriend\u2019s bedroom; defendant remained out of sight while his girlfriend awakened the victim and told him there was something wrong with the washing machine; defendant watched for the victim to come out of his bedroom and followed him as he walked to the laundry room; defendant shot the victim one time in the laundry room and then ran into another room; defendant watched through a crack in the door while the victim walked into the kitchen; defendant remained hidden until he walked into the kitchen and said, \u201cYou know it\u2019s over now, motherf-,\u201d and the victim said something to defendant; defendant saw the victim reach for something behind him and ordered the victim to get on the floor; defendant then shot the victim two more times; prior to the fatal shots, the victim did not have time to arm himself or to complete a 911 emergency call; and defendant testified that prior to entering the kitchen to confront the victim, he \u201cwaited around there for like a minute\u201d and wondered whether he should go into the kitchen or leave. The victim\u2019s awareness that he had been assaulted after the first shot and the interval of time between the first shot and the fatal shots, during which time defendant confronted the victim and they had a verbal exchange, did not negate the element of surprise and render the evidence insufficient to support conviction on the theory of lying in wait.\nAm Jur 2d, Homicide \u00a7\u00a7 47, 49.\nHomicide: what constitutes \u201clying in wait\u201d. 89 ALR2d 1140.\n2. Homicide \u00a7 663 (NCI4th)\u2014 murder by lying in wait \u2014 specific intent not required \u2014 voluntary intoxication irrelevant\nVoluntary intoxication is irrelevant to a charge of first-degree murder by lying in wait, a crime that does not require a finding of specific intent, because voluntary intoxication may only be considered as a defense to specific intent crimes. Therefore, the trial court did not err by failing to instruct the jury on voluntary intoxication in a prosecution for murder by lying in wait.\nAm Jur 2d, Homicide \u00a7\u00a7 47, 49, 127-129.\nHomicide: what constitutes \u201clying in wait\u201d. 89 ALR2d 1140.\nEffect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.\n3. Evidence and Witnesses \u00a7 1246 (NCI4th)\u2014 confession by juvenile \u2014 warnings of rights \u2014 trial as adult \u2014 rewarning of juvenile rights \u2014 issues first raised on appeal \u2014 constitutional rights not violated\nWhere a juvenile tried as an adult for first-degree murder failed to attack the admissibility of his confession at trial on the grounds that he was not informed prior to waiving his rights that he could be tried as an adult and that he was not rewamed of his juvenile rights, he may not do so for the first time on appeal. Furthermore, the trial court\u2019s findings are supported by competent evidence, and those findings support the trial court\u2019s conclusions that defendant voluntarily, knowingly, and understandingly waived his rights before giving the statement and that none of his constitutional rights were violated.\nAm Jur 2d, Appellate Review \u00a7 614; Criminal Law \u00a7\u00a7 788, 792; Evidence \u00a7\u00a7 719, 723.\n4. Criminal Law \u00a7 878 (NCI4th)\u2014 deadlocked jury \u2014 supplemental instructions \u2014 substantial compliance with statute \u2014 no coercion of verdict\nThe trial court\u2019s supplemental instructions to a deadlocked jury in a first-degree murder trial sufficiently addressed all of the concerns set out in N.C.G.S. \u00a7 15A-1235(b)(2) and (b)(4) and thus did not coerce a verdict in violation of defendant\u2019s constitutional rights, although they did not track the specific language of those subsections, where the trial court advised the jury to \u201ckeep an open mind and consider the opinions of all the other jurors and, if you can, to reach a unanimous decision if you can do that without the surrender of any conscientious or individual convictions\u201d; the trial court further instructed that \u201cno juror should give up his own personal convictions solely for the purpose of reaching a verdict\u201d and that the jury should try to reach a verdict \u201cwithout surrendering any individual conscientious convictions\u201d; and the court twice assured the jurors that it was not trying to force them to reach a verdict.\nAm Jur 2d, Trial \u00a7\u00a7 1104, 1108, 1448, 1451.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Freeman, J., at the 5 December 1994 Criminal Session of Superior Court, Forsyth County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 13 December 1995.\nMichael F. Easley, Attorney General, by Gail E. Weis, Associate Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Janine M. Crawley, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0567-01", "first_page_order": 599, "last_page_order": 612 }